1. Mediation with the Information Commissioner’s Office Cory Martinson Appeals and Policy Analyst 25 November 2009

2. Mediation Demystified

3. How does it work? Before the ICO proceeds formally with an appeal it will generally authorize the Appeals and Policy Analyst to mediate, investigate and attempt to settle the matter. Before the ICO proceeds formally with an appeal it will generally authorize the Appeals and Policy Analyst to mediate, investigate and attempt to settle the matter. The Analyst will send out a letter to the parties explaining how the mediation process works. The Analyst will send out a letter to the parties explaining how the mediation process works. The Analyst will ask each party to provide information necessary so he can investigate and understand the dispute. The Analyst will ask each party to provide information necessary so he can investigate and understand the dispute.

4. How does it work cont’… The Analyst is not an advocate for either side. The Analyst is not an advocate for either side. The Analyst’s role is to: The Analyst’s role is to: Investigate and discuss the circumstances of the request with the parties. Investigate and discuss the circumstances of the request with the parties. Facilitate through various means either a full or partial settlement of the appeal Facilitate through various means either a full or partial settlement of the appeal Ensure that the applicant has received all of the information that he or she is entitled. Ensure that the applicant has received all of the information that he or she is entitled. Form and share opinions based on the applicable provisions of the law and any relevant case law. Form and share opinions based on the applicable provisions of the law and any relevant case law.

5. Mediation may result in a number of outcomes These are some examples: Further information is released to the individual, Further information is released to the individual, A fee is confirmed or reduced, A fee is confirmed or reduced, Additional records responsive to the request may be located, Additional records responsive to the request may be located, Referral to another agency for resolution of the issue (e.g. Office of the Complaints Commissioner), Referral to another agency for resolution of the issue (e.g. Office of the Complaints Commissioner), Personal information is corrected or annotated, Personal information is corrected or annotated, Reasons are provided for refusing access to personal information. Reasons are provided for refusing access to personal information.

6. Use of Powers The Analyst will generally investigate on a consensual basis and will engage the ICO’s compulsory powers of production and inspection of records under the Law only if cooperation is not forthcoming. The Analyst will generally investigate on a consensual basis and will engage the ICO’s compulsory powers of production and inspection of records under the Law only if cooperation is not forthcoming.

7. Why Mediate? Can be less costly than a Hearing which may involve legal counsel. Can be less costly than a Hearing which may involve legal counsel. Many appeals can be resolved quickly and fairly without proceeding to a Hearing. Many appeals can be resolved quickly and fairly without proceeding to a Hearing. More efficient. (i.e. coming to a reasonable outcome often requires less effort than if the matter proceeds to a Hearing before the Commissioner) More efficient. (i.e. coming to a reasonable outcome often requires less effort than if the matter proceeds to a Hearing before the Commissioner) Mediation outcomes do not set precedents. Mediation outcomes do not set precedents. Mediation is a less public activity than a Hearing. Mediation is a less public activity than a Hearing.

8. Why Mediate cont’…? Good PR; the public authority is seen as working with the applicant rather than against them. Good PR; the public authority is seen as working with the applicant rather than against them. Education; Mediation provides an opportunity for the Information Commissioner’s Office to educate the public and the public authority on the intricacies of the FOI Law. Education; Mediation provides an opportunity for the Information Commissioner’s Office to educate the public and the public authority on the intricacies of the FOI Law. Information can be kept confidential at mediation. Information can be kept confidential at mediation. Offers multiple and flexible possibilities for resolving a dispute. Offers multiple and flexible possibilities for resolving a dispute.

9. Steps in Mediation 1. Ensure all the appropriate documentation has been collected from the parties involved. Original request Original request Response letter Response letter Internal review decision (if applicable) Internal review decision (if applicable) Appeal request from applicant Appeal request from applicant A copy of the records in dispute, if necessary A copy of the records in dispute, if necessary

10. Steps in Mediation cont’… 2. Establish jurisdiction Do we have authority to conduct this investigation/appeal? Do we have authority to conduct this investigation/appeal? 3. Contact the applicant and do the following: Listen to their story Listen to their story Determine what they really want Determine what they really want Manage their expectations Manage their expectations Provide them with next steps Provide them with next steps

11. Steps in Mediation cont’… 4. Contact the Public Authority and do the following: Listen to their story Listen to their story Obtain copies of the records Obtain copies of the records Obtain the rationale utilized in their decision making process Obtain the rationale utilized in their decision making process Clarify any inconsistencies Clarify any inconsistencies Provide them with next steps Provide them with next steps

12. Steps in Mediation 5. Analyze the records involved and the sections of the FOI Law which are applicable. 6. Conduct any case law research necessary. 7. Formulate an opinion on the merits of the Public Authority’s decision. 8. Provide the mediator’s opinion to the Public Authority either orally or in writing and suggest corrective action, if necessary. 9. Obtain feedback from the Public Authority on whether they are willing to alter their decision, if necessary.

13. Steps in Mediation con’t… 10. Contact the applicant and discuss the merits of the public authority’s decision any alterations to that decision and provide an opinion on the applicant’s likelihood of success at a formal hearing. 11. Determine whether the applicant wishes to pursue the matter further or close the file. 12. Close the file or proceed to a formal hearing before the commissioner. 13. Refer the parties to our Hearing process procedures and conduct a hearing. 14. The Commissioner makes binding Order. 15. If either side is not satisfied with the Order they may apply for a judicial review by the Grand Court.

14. Summary Mediation is an informal, flexible process that aims to assist applicants and public authorities in reaching an agreement. This process is facilitated by an impartial third party prior to proceding to a formal Hearing which would result in a binding decision from the Information Commissioner. Mediation is an informal, flexible process that aims to assist applicants and public authorities in reaching an agreement. This process is facilitated by an impartial third party prior to proceding to a formal Hearing which would result in a binding decision from the Information Commissioner. The mediation process has similar benefits for all parties involved including confidentiality, cost savings and the fact that agreements through mediation are not binding. The mediation process has similar benefits for all parties involved including confidentiality, cost savings and the fact that agreements through mediation are not binding.